Child Custody

Question 1

Who is obligated to support their children and for how long?

Answer 1

Both parents until the later of the child turning 18 or graduating from high school, UNLESS extended by court because of the child’s inability to be self-supporting is due to a physical or mental condition in existence at the time of reaching the age of majority.

Question 2

How does loss of parental rights affect the requirement to support minor children?

Answer 2

It generally relieves the obligation, UNLESS the rights are lost due to a conviction for rape or sexual assault resulting in the child’s conception.

Question 3

Who pays child support?

Answer 3

Usually the non-custodial parent.

Question 4

How will the amount of child support be determined?

Answer 4

As part of a divorce judgment, considering

1. the child’s needs
2. the parent’s ability to pay
3. the parents age, health, income, earning potential, skills, and training.

But also it’s just a formula in PA.

Question 5

When can the court deviate from the guidelines for child support?

Answer 5

Only when it sets forth specific findings explaining and supporting the deviation, including the amont of support that would have been awarded under the guidelines.

Voluntary under- or unemployment can lead to an “imputed income” by the court.

Question 6

Can parent’s bargain away child-support payments?

Answer 6

No, EXCEPT in agreements between the parents, as long as doing so would not negatively affect the child’s welfare.

Question 7

How will paternity be determined?

Answer 7

1. Presumption that a child born to a married woman is the child of her and her husband.
   
   1. Presumption is irrebuttable IF the family is intact at the time of the paternity question and the husband has assumed parental responsibilities.
   2. Presumption does not apply if the family is not intact or if there is no marriage to preserve.
   3. When rebuttable, presumption can be overcome by clear and convincing evidence that the father was unable to procreate because of impotency, sterility, or lack of access to the wife at the time of conception.
2. Only after the presumption of paternity has been overcome may court may order a blood test for the child and both parties.

Question 8

What is paternity by estoppel?

Answer 8

Court may declare paternity of a child regardless of whether the man and the child are biologically related, when doing so is in the best interest of the child and when the man has taken on the role of fatherhood and established a bond with the child.

Will NOT be used to prevent a biological father from asserting his rights.

Question 9

When will a parent be responsible for the child’s educational expenses?

Answer 9

1. When private schooling is a reasonable need of the child and a reasonable expectation and expense of the parents. OR
2. When it has been established that the child will benefit from the private school and if private school is consistent with the family’s standard of living prior to separation.

A parent may assume the responsibility for post-secondary education expenses, but the court will not mandate it.

Question 10

How will a court determine the amount of maintenance and child support?

Answer 10

By considering the following factors

1. the reasonable needs of the person seeking support
2. the obligor’s ability to pay support
3. ages of the children
4. unusual needs or obligations
5. support obligations of the parties
6. assets of the parties
7. medical expenses outside of insurance coverage
8. standard of living
9. duration of marriage, for spousal support or alimony pendente lite
10. best interests of the child.

Question 11

When will maintenance and child support be modified?

Answer 11

When there is a material and substantial change in circumstances regarding the child’s needs or parents’ financial situation.

N.B.: Change in financial status (especially increase in income) must be immediately disclosed or else the party might be subject to retroactive modification.

Question 12

When will child support be terminated?

Answer 12

When the child reaches the age of majority or upon graduation from high school, UNLESS

1. the child can prove that they are unable to support themself due to circumstances such as a mental or physical disability that exist at the time the child turns 18/graduates.
2. the child is emancipated before reaching the age of majority
3. the child marries
4. the parental rights are terminated
5. the parent dies, unless the support is part of the parents’ settlement agreement and that agreemend does not explicitly provide death as a method of termination.

Question 13

When can a child gain emancipation?

Answer 13

When they are established as a self-supporting individual independent of parental control, by looking at the totality of the circumstances, which include the child’s desire to live independently.

Question 14

What happens if you refuse to pay your child support?

Answer 14

1. Civil contempt
   
   1. Can be sent to jail and helt until the amount owed is fully paid
2. Criminal contempt
   
   1. Specific jail sentence
3. Other sanctions
   
   1. issuing judgments, seizing property, garnishing wages, ordering payment of attorney’s fees, including in other jurisdictions.

Question 15

What is the Uniform Interstate Family Support Act?

Answer 15

An act that allows for collection of child support/maintenance when the original support order is issued in one jurisdiction and the child for whom the support has been ordered resides in another state. It applies retroactively and applies in every state.

Question 16

What state has jurisdiction under the UIFSA?

Answer 16

Whichever state where the first action for support under the Act was filed.

If two or more courts have jurisdiction, the home state test applies to determine priority.

Question 17

What special privileges does the home state have?

Answer 17

1. Can enter a binding order and retain continuing exclusive jurisdiction IF it has long-arm jurisdiction over the other parent.

Question 18

What if there is no long-arm jurisdiction?

Answer 18

The custodial parent will file a petition in their state of residence (the initiating tribunal), which will then send three copies of the petition to the state of residence of the non-custodial parent (responding tribunal). That tribunal will serve the non-custodial parent and hold the respective hearing for support.

Question 19

What bases are there for long-arm jurisdiction under the UIFSA?

Answer 19

1. Service in Pennsylvania
2. Appearing at a hearing without jurisdictional objection
3. respondent has lived with the child in the state
4. repondent has lived in the state and provided support for the child or paid prenatal expenses
5. child lives in the state as a result of the acts or directives of the respondent parent
6. respondent had sexual intercourse in the state which may have resulted in the conception of the child
7. respondent asserted parental rights in the putative father’s registry maintained in the state
8. any other constitutional basis for jurisdiction.

Question 20

When may a state have exclusive continuing jurisdiction under UIFSA?

Answer 20

If the state made the initial ruling of support, then until that court determines that

1. the parties, including the children, no longer reside in the state OR
2. the parties consent in writing to the jurisdiction of another state.

Question 21

When can a support order be modified under UIFSA?

Answer 21

Only by the court that entered the original order under its exercise of exclusive, continuing jurisdiction.

Question 22

How can a support order be enforced?

Answer 22

If it was ordered by a court with exclusive, continuing jurisdiction, then the court retains power to enforce it.

If it was ordered by a court in the custodial parent’s state or if the non-custodial parent has reolcated to another state, then there are two possible methods of enforcement

1. Registration of order: the court that has continuing, exclusive jurisdiction can register the order and then grant any relief available for enforcement.
   
   1. This can be done with or without simultaneous request for enforcement
2. Direct enforcement: Obligee may seek direct enforcement of a support order, without registration, via an income withholding order forwarded to the state of the obligor’s employer, unless there is a timely objection made by the obligor.
   
   1. OR order may be forwarded to the support enforcement agency of the obligor’s state.

Question 23

What types of custody exist?

Answer 23

1. Legal custody: the right to make decisions affecting the child’s life
2. Physical custody: actual possession and control of the child.

These can both be either

1. Sole (exclusive) OR
2. Shared: neither parent has a superior right to make major decisions (if shared legal custody); shared physical custody just means the child maintains a residence at both homes and spends a significant amount of time with each parent.
   
   1. primary: having custody the majority of the time
   2. partial: having custody less than the majority of the time

Question 24

What is the Uniform Child Custody Jurisdiction and Enforcement Act?

Answer 24

An act that prevents jurisdictional disputes with courts in other states on matters of child custody and visitation.

Question 25

Where is venue proper under the UCCJEA?

Answer 25

Whenever jurisdiction has been properly established by the UCCJEA.

Question 26

What courts have jurisdiciton to make the initial custody determination?

Answer 26

1. The child’s home state’s courts;
2. The courts of a state
   
   1. that was the childs home state within the past six months,
   2. from which the child is currently absent,
   3. where one of the parents continues to live.
3. Any court if no other state has or accepts home state jurisdiction AND the child and at least one parent has a significant connection with the state AND there is substantial evidence in the state “concerning the child’s care, protection, training, and personal relationships”

Question 27

When will courts have exclusive continuing jurisdiction under the UCCJEA?

Answer 27

When the court

1. makes the initial ruling in a custody case, UNTIL
2. the parties no longer reside in the state OR
3. the child no longer has a significant connection to the state AND any substantial evidence connected to the child’s condition is no longer available in the state.
   
   1. Visitation in PA may constitute a significant connection.

Question 28

When can a court decline jurisdiction under the UCCJEA?

Answer 28

If, although it had either initial or exclusive jurisdiction, it finds the forum to be inconvenient based on the following factors

1. whether domestic violence occurred and is likely to continue in the future and which state could best protect the parties and the child
2. the length of time the child has resided outside PA
3. the ditance between the PA court and the court in the state that would assume jurisdiction
4. the parties’ relative financial circumstances
5. any agreement of the parties regarding which state should assume jurisdiction
6. the nature and location of the evidence required to resolve the pending litigation, including the child’s testimony
7. the ability of each state’s court to decide the issue expeditiously and the procedures necessary to present the evidence
8. the familiarity of each state’s court with the facts and issues in the pending litigation

OR

If a party has engaged in unjustifiable conduct, like wrongfully removing a child from another state.

Question 29

When does emergency jurisdiction exist?

Answer 29

When the child has been abandoned or in an emergency to protect the child because they or their sibling or parent were subjected to or threatened with mistreatment or abuse.

Question 30

How will another state’s orders be enforced in PA under the UCCJEA?

Answer 30

1. The order is registered, with or without simultaneous request for enforcement, by sending two copies to an appropriate PA court.
   
   1. PA court can grant any relief available for enforcement of the order.
2. If a petitioner files a petition for enforcement, then
   
   1. the respondent must appear in person at a hearing held on the first judicial day after service of the order (or the first possible date) AND
   2. the petitioner will be awarded immediate physcial possession of the child UNLESS
      
      1. the custody or visitation order was not registered AND
         
         1. the issuing court did not have jurisdiction OR
         2. the order had been stayed or vacated OR
         3. the respondent was entitled to notice, but notice was not given before the court issued the order for which enforcement is sought OR
      2. the order was registered and confirmed, but the was stayed, vacated, or modified.

Question 31

How will a court determine the best interests and welfare of the child?

Answer 31

By considering all relevant factors and giving weighted consideration to those factors that affect the safety of the child, including

1. which party is more likely to encourage and permit frequent and continuing contact between the child and the other party
2. present and past abuse committed by a party or member of the party’s household
3. parental duties performed by each party on the child’s behalf
4. need for stability and continuity in the child’s life, including education, family life, and community life
5. the availability of extended family
6. the child’s relationship with siblings
7. the well-reasoned preference of the child, based on the child’s maturity and judgment
8. the attempts of a parent to turn the child against the other parent, except in cases of DV where reasonable safety measures are needed to protect the child from harm
9. which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child
10. which party is more likely to attend to the daily physical, emotional, developmental, educational, and special needs of the child
11. the proximity of the parties’ residences
12. each party’s availability to care for the child or ability to make appropriate child-care arrangements
13. the level of conflict between the parties and the willingness and ability of the parties to cooperate with one another
14. the history of drug or alcohol abuse of a party or member of the party’s household
15. the mental and physical condition of a party or member of the party’s household
16. any other relevant factor.

N.B.: Gender may not be considered. The court must explain its reasons on the record or in a written order.

Question 32

What factors may the court NOT consider for the child’s best interests and welfare?

Answer 32

1. Gender
2. Religion
3. Race
4. parent’s prior sexual conduct

Question 33

Under what circumstances will a grandparent be granted custody to a child?

Answer 33

The grandparent

1. began the relationship with the child with the consent of a parent (or by court order),
2. has assumed or is willing to assume responsibility for the child, AND
3. one of the following conditions is met:
   
   1. child has been determined to be a dependent child under the statutes relating to juvenile delinquency
   2. child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse, or incapacity, OR
   3. grandparent has taken on the role of parent for at least twelve months

Question 34

What presumptions exist in determining the custody of a child?

Answer 34

1. There is no presumption between the parents of the child.
2. There is a presumption that custody will be awarded to a parent over a third party, which may be rebutted with clear and convincing evidence of the child’s best interest and welfare.
3. There is no presumption between multiple third parties.

Question 35

When will guardian ad litem be appointed?

Answer 35

In highly contested cases, especially if the child is of sufficient age to express their point of view.

The GAL has the duty of advocating for the child’s preferences.

The parents pay the GAL’s fees.

Question 36

When will visitation be available to the noncustodial parent?

Answer 36

Pretty much always, unless it has an adverse impact on the child’s mental or physical condition.

Question 37

When will supervised visitation be granted?

Answer 37

When necessary to safeguard the minor child AND only when the least intrusive means are utilized.

Question 38

May the court give visitation rights to third parties?

Answer 38

Yes, to grandparents and great-grandparents when:

• the parent of the child is deceased,
• the marriage of the parents is dissolved, OR
• the child has resided with the grandparents or great-grandparents for a year or more.

Grandparents must also prove that the arrangement is in the child’s best interests AND wouldn’t interfere with the parent-child relationship.

A fit parent’s determination of the appropriateness of third-party visitation should be given special weight by the court.

Question 39

How are custody orders and visitation orders enforced?

Answer 39

Usually by civil court order.

In another state, if the decree has been registered in the state seeking enforcement.

Question 40

When will a party be held in contempt and what are the potential punishments?

Answer 40

When the party willfully fails to comply with any custody order.

1. Imprisonment for up to 6 months
2. Fine up to $500
3. Probation up to 6 months
4. Suspension of a driver’s license
5. Attorney’s fees and costs.

N.B.: an order committing somebody to jail must specify the conditions that, when fulfilled, will result in release.

Question 41

When will a custody or visitaiton order be modified?

Answer 41

Only if doing so is in the child’s best interests.

Substantial change in circumstances not required, though they may be considered.

Violation of an order does not automatically change the custodial parent, but will be considered.

Question 42

When can a party relocate the child?

Answer 42

Only if

• all parties with custodial rights to the child consent to the relocation OR a court approves the relocation; and
• all parties with custodial rights are notified by the moving party at least 60 days prior to the relocation OR within 10 days of knowing of the relocation if 60-days was impossible; and
• the proposing party proves that the relocation is in the child’s best interests.
  
  • N.B.: The parent’s constitutional right to travel should be considered too!

Question 43

When will a child custody order terminate?

Answer 43

1. Custodial parent’s death (usually custody goes to the surviving parent)
2. child reaches age of majority
3. emancipation, OR
4. termination of custodial parent’s parental rights.